More DTrace envy

Some of the Linux copyright holders are dead. Some have merely vanished. One of them's a
company that tried to kill Linux a few years ago. In some cases we probably don't even have a
solid idea who the copyright holder is. Changing the license isn't a real possibility.

(The last time the license changed was in 1992, when it probably was possible to identify
everyone who'd contributed any code to Linux using a single person's fingers. Since then Linus
has clarified what his interpretation of the license is at various points, but these
clarifications aren't binding)

There are probably over 1000 Linux copyright holders. Getting 100% agreement out of 1000
people is rare if not impossible. One of the bonuses Sun can say as a business argument is
that OpenSolaris is 100% theirs and they can do whatever they want when they want without
having to get such agreement. 

The argument would be that any Linux implementation of dtrace is going to end up being a
derived work of the Linux kernel, and therefore would have to be available under the terms of
the GPL. The CDDL includes restrictions not present in the GPL, making it impossible to
satisfy both licenses simultaneously. Shipping the combined work would therefore be a
violation of the GPL. In the absence of the GPL there's no further permission to distribute
the Linux (and Linux derived) code, and therefore doing so constitutes a copyright
infringement.

Various people have various opinions on the validity of that argument. I'm aware of various
legal opinions that have been professionally offered. To the best of my knowledge, though,
there's no especially useful case law and so it's difficult to know which way the courts would
go. People tend to err on the side of caution when the potential cost (injunctions against
distributing their primary product) outweigh the potential benefit (a single, even if useful,
feature).

> So who is going to sue whom

Doesn't matter.

> on what grounds?

From my previous post: unfair competition, deceptive business practices, breach of contract,
etc.  Depends on the circumstances and parties.

> If you really want to find reasons why you can't port DTrace, knock yourself out.

Nobody's trying to create reasons not to port DTrace if that's what you're implying.  But
here's the thing: if it isn't clearly legal and moral to snake someone else's code, then it's
only considerate and safe to assume that you can't!

I've been searching for reasons to believe that they're compatible but I haven't found any
clear legal statement from Sun or anyone else, nor even any tiny nugget of estoppel.  Did Sun
ever produce the Devleoper's Bill of Rights?
http://www.cbronline.com/article_news.asp?guid=3B8EDD57-1...

You (or rather your friend) is making my point:  the restitutionary damages that she mentions
are the case of Meglocorp shipping GPL'd goober in proprietary product, and Hacker suing for
damages.  That's not the case that was being floated; the assertion was that Meglocorp would
become a Linux copyright holder and then could sue when CDDL'd source was distributed with
the(ir) GPL'd source.  I don't see what the damages are in this case -- compensatory or
restitutionary.  I think if it's flipped around -- Meglocorp ships GPL'd+CDDL'd goober, Hacker
sues because GPL has been violated -- one at least has a case, but I happen to think it's an
extraordinarily weak case: it relies on both an expansive definition of a derived work, and a
creative approach to damages.